A man who was convicted of rape and indecent assault in 1996 has lost a challenge to the mechanism for reviewing notification requirements.

Rejecting the application, Mrs Justice Siobhan Keegan was satisfied that the review mechanism was compatible with the European Convention of Human Rights, and that there was not any injustice requiring correction in the man’s own case.

Background

In October 1996, Stuart Lee Johnston was convicted of rape and sexual assault. Mr Johnston was sentenced to 12 years imprisonment for rape, and 6 years for indecent assault, to run concurrently. In November 2001, Mr Johnston was released from custody and subject to the notification requirements under the Sexual Offences Act 2003. Section 82 of the Sexual Offences Act 2003 provided that a person imprisoned for a term of 30 months or more was subject to notification requirements for an indefinite period.

Mr Johnston challenged the Sexual Offences Act 2003, and subsequent amending legislation, as being incompatible with the European Convention on Human Rights and outside the legislative competence of the Northern Ireland Assembly.

In April 2010, the UK Supreme Court decided that the existing indefinite notification arrangements were incompatible with Article 8 ECHR as they did not contain any mechanism for review of the justification for continuing the requirements in individual cases.

The Criminal Justice Act (Northern Ireland) 2013

The Criminal Justice Act (Northern Ireland) 2013 inserted a new Schedule 3A into the Sexual Offences Act 2003 to provide a mechanism for review.

Schedule 3A to the Criminal Justice Act (Northern Ireland) 2013 provides for an offender to apply to the Chief Constable to discharge him from the notification requirements at the end of an initial review period of 8 years (if the offender was under the age of 18 when made subject to the initial notification) or 15 years (if over the age of 18).

It was explained that the Chief Constable will discharge the notification requirements, unless he is satisfied that the offender poses a risk of sexual harm and that the risk is such as to justify the notification requirements continuing.

Schedule 3A paragraph 3(2) sets out the factors that the Chief Constable must take into account when making his decision. If the Chief Constable decides not to discharge the notification requirements, the offender may apply to the Crown Court for an order discharging him from the notification requirements. There is no review of the Crown Court’s decision.

However, at any time after the end of 8 years (or 4 years if the offender was under 18) from the date of service of a notice of refusal to discharge the notification requirements, the offender may make a further application to the Chief Constable.

Divisional Court

In the Divisional Court, Mr Johnston contended that the Crown Court judge had made an error in his decision-making which affected his Article 8 rights and as such he should have a right of appeal in order to correct this.

The Department of Justice questioned the legitimacy of the challenge and said it was effectively a judicial review of a Crown Court decision, which was impermissible by virtue of section 1 of the Judicature (Northern Ireland) Act 1978. The DOJ said this was a case where Mr Johnston disagreed with the result, and there was no obligation to provide an appeal in the circumstances.

The Attorney General submitted that the Criminal Justice Act (Northern Ireland) 2013 provides a procedure that was not available beforehand, namely a review, and as such this cannot be contrary to any rights protected by the ECHR as the Act is beneficent to the applicant. He further contended that section 6(2)(c) of the Northern Ireland Act 1998 states that a provision of an act of the Northern Ireland Assembly is not law only if that provision is itself incompatible with the ECHR – it does not address or condemn inaction or omission.

Mrs Justice Keegan commented that ongoing imposition of notification requirements were directed to the preservation of public safety and the reduction of risk from a repeat offender. She said it was a settled principle that the Crown Court is not amenable to judicial review, and that the Court would therefore proceed to examine the core question of whether the statutory notification regime offended ECHR rights. To answer this question, Mrs Justice Keegan considered s.6 of the Northern Ireland Act 1998 - the governing legislation in relation to whether a provision contained in an Act of the Assembly is outside its legislative competence.

Mrs Justice Keegan said it was clear that “full consideration was given by the Department as to the compatibility of the legislation and in particular consideration was given as to how the Supreme Court judgment could be respected within the legislative structure. We agree with the assessment that there is no breach of Article 8”.

Considering the difference of treatment between the jurisdiction of Northern Ireland and that of England & Wales, Mrs Justice Keegan observed that although an applicant in Great Britain can apply to the Magistrate’s Court for review; an applicant in NI has the benefit of a review by a higher tier of Court and an experienced Crown Court judge, and that this was in accordance with the October 2011 report of the UK Parliament’s Joint Committee on Human Rights.

Reiterating the well-established principle that Article 6(1) ECHR does not guarantee a right of appeal from a decision of a court of first instance, Mrs Justice Keegan said the Court could see no breach of Article 6(1) by virtue of the chosen appeal route.

Rejecting Mr Johnston’s primary case to strike down or declare the legislation incompatible, Mrs Justice Keegan also considered the facts of Mr Johnston’s individual case and could not discern any injustice requiring correction.